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Nov. 2, 2012

Change urged for drunken driving cases

A special counsel urged the state’s highest court Thursday to embrace measures, including tougher laws and changes in courtroom policy, to help erase the “appearance of leniency’’ in drunken driving cases decided by judges instead of juries.

Judges in some Massachusetts courts, particularly in Worcester County, acquit nearly all drunken driving defendants who waive their right to a jury trial, according to a yearlong study of the court system that recommends curbing “judge shopping.’’

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The study, commissioned by the Supreme Judicial Court last year following a Globe Spotlight series, recommended that defendants be required to choose a bench trial earlier in the process, instead of waiting until the last minute. Some defendants decide to waive their right to a jury trial on the day of the trial when a judge with a reputation for leniency appears on the bench.

The 148-page report by Jack Cinquegrana, a former federal and state prosecutor the SJC named special counsel on the issue, also suggested that the judiciary consider ­requiring district court judges to rotate through courts more often and that judges receive more training on how to handle scientific evidence. The study also recommended lawmakers close a loophole that enables some defendants to evade conviction even though their blood-alcohol level is above the legal limit of .08 percent.

Cinquegrana found that when drunken driving cases go to trial, juries acquit 58 percent of the time, while judges find defendants not guilty 86 percent of the time. Those numbers track very closely to the conclusions of the Globe’s Spotlight Team a year ago.

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In Worcester County, the ­average bench trial acquittal rate in drunken driving cases was 97 percent. That is 11 percentage points higher than the statewide average, according to the study.

Overall, 77 percent of OUI defendants in Massachusetts are convicted, the study found, which was “within a range of similar results” in other states where data was available.

That conviction rate reflects guilty verdicts, guilty pleas, and the most common outcome of all, in which a case is “continued without a finding.” Cases resolved without a finding represent a common plea deal for first offenders. The result carries most of the penalties of a guilty finding without giving the defendant a criminal ­record.

The Globe series acknowledged that most OUI cases are disposed of before trial and ­focused only on those in which a judge or jury made a finding of guilty or not guilty. That is where Massachusetts appears to be an outlier in its judicial ­leniency, the newspaper found.

But Cinquegrana wrote that “bench trials alone do not have a substantial impact on the enforce­ment of OUI statutes in Massachusetts” because less than one defendant in 10 is ­acquitted by a judge.

Still the study said that the “record of near-100 percent ­acquittals and high [jury trial] waiver rates in certain courts, and before certain judges, creates an appearance of leniency.’’

The report urged caution in interpreting the statistics.

Cinquegrana, who reviewed nearly 57,000 OUI cases, said he heard no allegations from lawyers and judges he interviewed that the high acquittal rates in bench trials “are the product of corrupt relationships between lawyers and judges. However, the appearance created by such patterns of acquittals should be ­addressed.’’

It was not immediately clear how the court would address that issue. District Court Chief Justice Lynda M. Connolly could not be reached for comment.

Cinquegrana emphasized in the report that that he was not given subpoena power by the SJC. “We have not investigated the relationship between any particular lawyer and any particular judge,” he wrote.

It is unclear whether the Massachusetts Commission on Judicial Conduct is conducting its own inquiry.

Last year, the Globe reported on several friendships ­between judges and defense lawyers who appeared before them, including one judge who shared Red Sox season tickets with a prominent drunken driving defense lawyer and ­another who tried a case involv­ing the same lawyer, ­after he had been forbidden to do so by his superiors because of their friendship.

“I was instructed not to conduct a disciplinary inquiry,’’ Cinquegrana said. “That wasn’t the assignment.’’

The special counsel, like the Globe, found that in some ­instances the only just verdict in drunken driving trials decided by a judge is not guilty. There are cases of sloppy police work, questionable field sobriety reports, and prosecutors’ reluctance to dismiss flawed cases.

Still, Cinquegrana wrote that “no one we interviewed could explain how any combination of these factors could ­result in the acquittal of virtually every OUI defendant who chose a bench trial, as we found in certain courts, such as those in Worcester County, and ­before certain judges.’’

He also highlighted baffling decisions by some judges to ­acquit accused drunk drivers even after they failed breath tests that placed the level of ­alcohol in their bloodstream above the legal limit of .08 percent.

“No one offered us a complete explanation for this finding,’’ the special counsel wrote.

Many of those cases ­involved argument over whether a suspect might have still been absorbing alcohol into his bloodstream when he was stopped by police and only crossed the legal threshold ­after being taken into custody.

Massachusetts laws do not provide judges enough guidance to evaluate the science ­behind this argument, the ­report said. It identified 15 states where the OUI laws make explicit that a breath test over .08 is automatically evidence of intoxication if the test is given within a certain time after a traffic stop.

Cinquegrana recommended Massachusetts revise its law along the same lines, although he noted that such a change might face a constitutional challenge.

The Globe series described the 2011 case of a man with a .11 Breathalyzer reading taken at a police checkpoint. The jury found him guilty, but Judge Margaret R. Guzman overruled their verdict, saying that the prosecutor had not presented evidence that the breath test taken half an hour after he was stopped reflected his level of intox­ication while he was still behind the wheel. Ultimately, the appeals court overturned Guzman’s decision in that case.

Guzman, who is based in Worcester County, is one of the judges with a perfect record of acquittals at bench trial. She acquitted all 149 defendants who came before her in bench trials in the study.

She said through an assistant Thursday that she was not available to comment.

Of 33 judges with high bench trial acquittal rates identified by Cinquegrana, 18 regularly sat in Worcester County.

Two district courts in the county, East Brookfield and Fitchburg, had held a disproportionate number of bench trials and had extraordinarily high acquittal rates. Those two courts held 751 bench trials from Jan. 1, 2008, to Sept. 30, 2011, which was 13 percent of all bench trials held in the state in that period. Of those 751 trials, 732 resulted in acquittals.

In contrast, Cinquegrana said, some courts hardly ever hold bench trials for drunken driving. Of 140 OUI trials in Newburyport, for example, ­only three were bench trials.

“There are disparities at both ends of the spectrum,’’ Cinquegrana said in the interview. “I think the goal of the criminal justice system is to try to run it uniformly.’’

Cinquegrana said the extra­ordinarily high acquittal rate in bench trials in Worcester made the question of coziness between some judges and lawyers irrelevant.

“If 97 percent of all bench trials result in acquittal, then virtually every lawyer who elects a bench trial is succeeding,’’ he said.

The study recommends four remedies, two of which would need legislative approval.

First, the Legislature can make it harder for defense lawyers to argue that clients might have been intoxicated at the time they took a Breathalyzer test but were not when they were driving because the alcohol had not entered their bloodstream yet.

The study also recommends that the Legislature close a ­legal loophole that enables drivers to avoid the penalty for refusing a breath test, a long license suspension, if they are later acquitted.

House Speaker Robert A. DeLeo said through a spokesman that he plans to discuss the special counsel’s report with court officials, prosecutors, and defense lawyers.

State Representative ­Eugene L. O’Flaherty, the House Judiciary Committee chairman, said he is reviewing the report’s recommendations but expects legislation to be filed early next year to address “Cinquegrana’s exhaustive and thorough review of OUI disparities throughout our Commonwealth.’’

The judiciary can adopt two other remedies on its own: improv­ing how judges assess scientific evidence and requiring defendants to specify whether they will waive their right to a jury earlier in the process to prevent “judge shopping.’’

The SJC said it will soon ­appoint a group of judges to ­investigate whether the jury waiver process should be changed and make recommendations by March 30.

Reaction to Cinquegrana’s report was mixed.

Ron Bersani — the state’s most prominent advocate for an overhaul of drunken driving laws, whose granddaughter, Melanie, was killed in a drunken driving accident that led to “Melanie’s Law’’ — was disappointed that the special counsel’s inquiry did not investigate ties between some judges and lawyers.

He lamented another issue Cinquegrana mentioned: the “rote and repetitive manner” in which police officers describe, in their police reports and on the witness stand, the field ­sobriety tests they administer and the signs of intoxication they observe.

“Judges who hear the same description of different cases may tend to discount the significance of what they hear,” the report said.

“I think it’s disrespectful to the professionals who are out there on the road,’’ Bersani said. “Police officers are trained to look for certain indicators that someone is under the influ­ence. The judges are not showing any respect for that. Slurred speech, unsteady gait, odor of alcohol — what else do they have?”

Nonetheless, he was pleased with the recommendations in the report and said he hoped the Legislature and judiciary would embrace them.

John E. Bradley Jr., a former high-ranking Plymouth County prosecutor who complained to the regional administrative judge in May 2008 about ­acquittal rates in bench trials that he found “flat-out staggering,’’ said he was deeply disappointed that Cinquegrana did not recommend a remedy he and District Attorney Timothy J. Cruz had proposed.

They had urged the judiciary to require that the government must join in a request for a bench trial, a practice in place in both the federal court system and in some states. But Cinquegrana wrote that “most participants told us this would result in clogged court dockets and greater delays in scheduling jury trials.’’

“The reasons provided were the same old Chicken Little-type stuff that if we allowed this to happen, the system would collapse under the weight of its own volume, and I just don’t buy into that,’’ said Bradley.

Cruz, for his part, said in a statement that the report confirms that “there is a disturbingly high rate of not guilty verdicts . . . before certain judges. Sadly, the report does not ­explain why this is so.”

Stephen L. Jones, a defense lawyer who specializes in drunken driving cases and was interviewed by Cinquegrana’s team, opposed some of the recommendations.

Requiring a defendant to decide whether to waive his right to a jury early in the process without knowing which judge would hear the case would make it almost impossible for Jones to recommend that a client choose a bench trial.

“It would be malpractice to sign a jury waiver not knowing who the judge is or isn’t,” he said. “There are judges where nobody goes jury-waived ­because it becomes extremely unlikely, if not virtually impossible, to win a case.”

He also opposed eliminating the exception that allows an OUI defendant who refused to give a breath sample to get his or her license back if he or she is acquitted of drunk driving.

He noted that the driver’s ­license suspensions for refusing to take a breath test became very serious under Melanie’s Law: six months for a first ­offender, three years for a second offender, life for a four-time offender.

“The license losses are so long, it is virtually forcing people to take the test,” he said. If someone is ultimately acquitted of OUI, “do the penalties fit the crime?” he asked.

The special counsel said that after last year’s Spotlight Team report, the percentage of cases in which a defendant opted to ask a judge instead of a jury to decide his case declined significantly.

Thomas Farrragher of the Globe Spotlight Team contributed to this report. Jonathan Saltzman can be reached
at jsaltzman@globe.com.
Marcella Bombardieri can be reached at bombardieri@
globe.com
.
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